1. ' MUSHTAK ALI NAZI (CHAIRMAN).--The appellant was appointed as Sub-Engineer or Overseer in the Guddu Barrage Project on 3rd July, 1954 under the Government of Sind. He was three years course diploma holder. In the year 1958 his services were transferred to WAPDA where he was promoted as Assistant Engineer on 3rd February, 1964 and then as Senior Engineer on 8th November, 1975. He retired while holding that post on 2nd November, 1979. His case for pension was then referred to his parent department in the Province of Sind. The appellant claimed pension calculated on the average pay drawn by him during the last three years of service. His pension was, however, worked out on the salary of Sub-Engineer, the post which he held before going on deputation to WAPDA. It was pointed out that even Sub-Engineers similarly qualified and senior to the appellant are still working in the same grade and none have been promoted in Grade 16. The request of the appellant for grant of pension as Executive Engineer during the deputation was therefore rejected by order dated 25th June, 1980 by the Additional Chief Secretary, Government of Sind, Incharge of Irrigation &Power Department.
2. ' The appellant preferred an appeal to Governor of Sind against the der on 15th July, 1980. No decision on the said appeal had Seen taken or communicated to the appellant. He then prefer service appeal under section 4 of the Sind Service Tribunals Act, and November,,1980.
3. ' Hassan Akhar, A. A.-G. Has taken preliminary objection that the 3 barred by limitation and is also not maintainable: That the l order was passed on 25th June, 1980 and the departmental before the Governor of Sind was preferred on 15th July, 1980 failing period from appeal expired on 14th October, 1980. The Tribunal should have been preferred within the remaining 24th October, 1980 but the appeal was preferred on 2nd 1980 late by 8 days.
4. ' By to this objection Mr. Mushtak Hussain on behalf of the has argued that the appeal is within time having been filed days from the date of the impugned order. According to the Jvocate 30 days' time having been allowed for preferring depart-peal and 90 days having been allowed after filing of depart3eal the appellant had still 30 days' time to prefer the appeal on )0 days i. e. In all 150 days from the date of the impugned order. {{PAGE CUT}} It is true that the relevant section of the -Sind Service Tribunals Act, 1973 is not happily worded, but there can be no doubt about the intention. Under section 4 of the Act, any civil servant aggrieved by any final order whether original or appellate made by a departmental authority may within 30 days of the communication of such order prefer an appeal to the Tribunal. When there is no appellate order the original order is to be regarded as the final order. The appeal before the Tribunal has, therefore, to be filed within 30 days of the communication of the original order, but under proviso (a) where an appeal to a departmental authority is provided the limitation period of 30 days stops running during the period of 90 days from the date of filing of the departmental appeal. On expiry of the 90 days the period will again start running so that in all 121 days period can be availed of for filing the appeal before the Tribunal. There is nothing in the section to suggest that 30 days period allowed for preferring the departmental appeal is to be excluded from the total period. The limitation time is 30 days from the date of the final order whether original or appellate but during the 90 days waiting period time does not run. Thus in all 120 days are allowed and not 151 days as suggested by the counsel.
5. ' Mr. Mushtak Hussain has then requested that this delay be condoned under section 5 of the Limitation Act as the appellant while preferring this appeal had been misled by the practice of the Sind Service Tribunal, since in those days in some cases the previous Tribunal had allowed 150 days' time. Mr. Mushtak Hussain has referred to a decision of this Tribunal reported in 198 1 PLC (C.
6. S.) 471. In that decision the delay was condoned on similar ground that the appellant had in fact been misled by the practice of the previous Tribunal prevailing in those days, as an impression had been created that the total period was 150 days and not 120 days but later on a decision allowing 120 days only had been approved by the Supreme Court. The present appeal was filed during the time when the previous Tribunal was in office. Under the circumstances it is possible that the appellant ray have remained under', the impression that the actual period allowed for the service appeals was 150 days from the date of impugned original order. The application) under section 5 of the Limitation Act is accordingly allowed and the delay of 8 days is condoned.
7. ' It has then been argued by the learned A. A.-G. That the present appeal is still not maintainable because the original impugned order was passed by the Additional Chief Secretary incharge of Irrigation & Power Department. Under the Rules of Business an Additional Chief Secretary incharge of a department is to be considered as having the same powers as Secretary of the department concerned. When an order was passed by the Secretary then the appeal would lie to the next higher authority namely ; the Chief Secretary and not to the Governor. That in any case the appeal from the order of Chief Secretary would lie to the Chief Minister and in the absence of the Chief Minister before the Martial Law Administrator and the appeal would not lie under any circumstances to the Governor. Mr. Hassan Akbar has relied upon Sind Government Rules of Business 1978 rule 2 (xx). Mr. Mushtak Hussain in his reply has argued that the Sind Government Rules of Business cannot be looked into but only the Service Tribunal Rules would be relevant. That an appeal from the order of the Chief Secretary lies to the Martial Law Administrator and Additional Chief Secretary would be included in the definition of Chief Secretary. This reply however does not appeal to the convincing as the impugned order was passed clearly by the department concerned and not by the Chief Secretary to the Government as such. The departmental appeal was not, therefore, tiled before the proper forum and could not be regarded as an appeal legally filed before the appellate authority. Mr. Muhstak Hussain has pointed out that the appeal had been referred back to the department concerned through the Chief Secretary. However that cannot be regarded as having been transferred to the Chief Secretary for decision as the appellate authority.
8. ' Even on merits the appellant has hardly any case. The appellant's services had been placed at the disposal of the WAPDA on deputation. He had received promotions in the WAPDA but it had been expressly mentioned that the promotion would not entitle the Officer to claim any seniority or other benefits over his seniors in his parent department. The respondent Government has filed the certificate that no three years S.
0. C. Sub-Engineer junior to Mr. Jamil Ahmad appellant has been promoted as Sub-Divisional Officer or Assistant Engineer in Grade 16 in the Irrigation and Power Department, Government of Sind. A reference has also been invited to the letter from Government of Sind Finance Department, dated 30th November, 1974 in which it was mentioned that employees of the Provincial Government who were still on deputation to WAPDA on that date were to be treated as on foreign service'. The appellant having retired in the year 1980 his case would be governed by the clarification contained in the letter, dated 30th November, 1974 and not by the directions given in the earlier dispatch, dated 12th April, 1974. Under the Pension Rules, section 2, rule 4.4 the term average emolument of a Government servant would mean the average of the pay that he drew or 'would have drawn'. The foot-note to the rule explains that the term pay does not include the pay drawn by a Government servant in 'foreign service'. In the letter referred to above dated 30th November, 1974. Employees of the Provincial Government on deputation to WAPDA were to be treated as on 'foreign service'. In any case WAPDA was an independent corporation and the WAPDA revenues were separate and distinct and were not included in the Central budget. Nor has the Government of Sind received any pension contributions for the appellant from WAPDA so far Under the circumstances the Government would be liable to pay the pension according to the average pay that the incumbent would have drawn had he remained in the Irrigation Department of the Government of Sind. The promotions that the appellant received while serving in WAPDA were not in consultation with the Irrigation Department, Government of Sind and the parent department cannot be burdened with the pension calculated on the pay drawn after promotion during the deputation period. No case has, therefore, been made out for interference it's the course of this appeal.
9. ' In the result the appeal is dismissed with no order as to costs.